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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 11


Meeting Date: January 23, 2007

Subject/Title: Adopt a Resolution Approving the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP), the Related Implementing Agreement, the Related Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy, and Adopting the Environmental Findings as Responsible Agency for the Final Environmental Impact Report for the HCP/NCCP; and Appoint a City Council Representative and Alternate To The East Contra Costa County Habitat Conservancy Board.

Prepared by: Winston Rhodes, Senior Planner

Submitted by: Howard Sword, Community Development Director


RECOMMENDATION
Take the following two actions related to the Final East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP) released on October 10, 2006:

1. Adopt a Resolution including the following actions:

• Adopt the findings pursuant to the California Environmental Quality Act (CEQA) and related to the Final Environmental Impact Report (EIR) for the HCP/NCCP (see Exhibit A of Attachment 2);

• Approve the HCP/NCCP, as revised by the “Corrections and Updates to the HCP/NCCP, December 19, 2006” (see Exhibit B of Attachment 2);

• Approve and authorize the City Manager to execute the “Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (see Exhibit C of Attachment 2) ;

• Approve and authorize the City Manager to execute the “Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy” (see Exhibit D of Attachment 2) to form the entity that will oversee implementation of the HCP/NCCP; and

• Direct the Community Development Director to file a Notice of Determination with the Contra Costa County Clerk

2. By motion, appoint a City Council representative and an alternate to the East Contra Costa County Habitat Conservancy Board



PREVIOUS ACTION
On November 10, 1998 the City Council directed staff to work with other East County jurisdictions and State and federal agencies to explore creation of a HCP/NCCP. On March 28, 2000 the City Council declared the City’s interest in cooperatively developing a HCP/NCCP with other government jurisdictions in East Contra Costa County and authorized the City Manager to sign an interagency agreement forming the East Contra Costa County Habitat Conservation Plan Association (“HCPA”) to manage preparation of the HCP/NCCP. On January 9, 2001 the City Council appointed Council Member Bill Hill to serve as the City’s representative on the HCPA Executive Governing Committee (EGC). On May 8, 2001 the City Council approved Principles of Participation for Brentwood’s involvement in the preparation of a Habitat Conservation Plan for East Contra Costa County. On August 26, 2003 the City Council appointed Council Member Ana Gutierrez to serve as the City’s alternate representative on the HCPA EGC and she was subsequently appointed to represent the City on the EGC since December 2004.

BACKGROUND
The purpose of the HCP/NCCP is to establish a streamlined review process for federal and State permits involving development impacts on protected species. The HCP/NCCP would replace the current, time-consuming case-by-case approach used by federal and State agencies to review project impacts and determine appropriate mitigation for certain covered biological resources. The HCP/NCCP would provide member agencies (including the City) with the authority and responsibility for issuing State and federal endangered species permits within each of their own jurisdictions. The member agencies include the City of Brentwood, City of Clayton, City of Oakley, City of Pittsburg, and Contra Costa County. This new authority would apply to public as well as private development projects. The HCP/NCCP will also require “preservation areas” to be established through voluntary land purchases within the HCP/NCCP project area to mitigate the impacts of future development.

The HCPA was formed to manage and fund development of an HCP/NCCP for submission to the governing boards of the HCPA member agencies and ultimately to the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish & Game (CDFG). The HCPA released the Final HCP/NCCP and Final EIR on October 10, 2006. These documents are included in the attached CD for electronic review, are available on the World Wide Web at www.cocohcp.org, and in four printed volumes available for viewing at the Community Development Department and the Brentwood Library. The HCPA also prepared a summary booklet on the HCP/NCCP (see Attachment 1).

LOCAL APPROVAL PROCESS
A summary of the local approval process for the HCP/NCCP is provided below. Additional information on the history of the planning effort and key steps in the planning process is provided on pages 4 and 5 of the attached summary booklet. The summary booklet also provides an overview of the extensive public involvement process that was conducted for the HCP/NCCP, including monthly meetings of the stakeholder committee formed to advise on the effort, regular public meetings of the HCPA Executive Governing Committee, and numerous workshops and presentations to HCPA member agencies and other interested organizations.

On November 8, 2006 the HCPA Association Executive Governing Committee, as the lead agency under CEQA, approved the following key actions:

• Certified the HCP/NCCP EIR and approved findings and a mitigation monitoring and reporting plan consistent with the requirements of CEQA.
• Approved the HCP/NCCP for submission to participating city councils, the County Board of Supervisors, and East Bay Regional Park District Board of Directors.
• Recommended approval of the HCP/NCCP by the HCPA member agencies.

During December 2006 thru February 2007 City councils, the County Board of Supervisors, and the East Bay Regional Parks District Board of Directors each will meet to take action on the HCP/NCCP. If any local agency does not approve the HCP/NCCP, additional approval steps by the remaining parties would be necessary and further environmental review might be necessary if non-approval required a substantial revision of the HCP/NCCP. The Habitat Conservancy Governing Board will meet after each of the participating local agencies approves the HCP/NCCP to consider approving the HCP/NCCP and Implementing Agreement. In early 2007 CDFG and USFWS will consider approving the Implementing Agreement and issuing permits to local agencies (including Brentwood) if all participating local agencies have approved the HCP/NCCP. The anticipated deadline for participating cities and the County to adopt an Implementing Ordinance is Spring 2007, after State and federal Endangered Species permits are issued (a model draft Implementing Ordinance is included within Exhibit C of Attachment 2 the Implementing Agreement). The Ordinance and a fee resolution would establish the fees pursuant to the HCP/NCCP.

EXPLANATION OF RECOMMENDATIONS

Adopt Findings Pursuant to CEQA and Final EIR

CEQA requires that agencies must find for each significant impact identified in an EIR that the project impacts have been changed with mitigation measures to reduce the project impacts to a less than significant level or that there are overriding considerations that make mitigation infeasible. As indicated in the proposed findings (see Exhibit A of Attachment 2) and in the EIR, significant impacts identified for the HCP/NCCP all can be mitigated to a less than significant level. All significant impacts identified for the HCP/NCCP relate to the assembly, restoration and operation of the HCP/NCCP preserve system and mitigation measures would be the responsibility of the Habitat Conservancy (see discussion below).

Approve HCP/NCCP, as revised by Corrections and updates to HCP/NCCP

In this recommendation, the City Council is asked to approve the two volumes of the Final HCP/NCCP released on October 10, 2006 and corrections and updates to the Final HCP/NCCP (see Exhibit B of Attachment 2 for corrections).

Authorize City Manager to Execute the Implementation Agreement for HCP/NCCP

The Implementation Agreement is an agreement among the participating cities, the County, the Contra Costa Flood Control District, the East Bay Regional Park District (EBRPD), CDFG, and USFWS that assigns roles and responsibilities to these parties in the implementation of the HCP/NCCP (see Exhibit C of Attachment 2 for Implementing Agreement). The Implementing Agreement would require CDFG and USFWS to provide regional endangered species permits to the participating cities, the County, the Flood Control District and EBRPD, which collectively would be responsible for implementing the terms of the permits. The Habitat Conservancy to be formed by the participating cities and the County would have primary responsibility for expending fees and other funds and for ensuring that the land acquisition, habitat restoration and enhancement, and land management and species monitoring requirements of the HCP/NCCP are implemented. The participating cities, County, Flood Control District, and EBRPD would issue endangered species permits to themselves and ensure compliance with the HCP/NCCP for public projects they conduct. The cities and the County would also issue endangered species permits to developers of private projects approved by the cities or the County and ensure that such projects also comply with the HCP/NCCP. In addition, EBRPD is anticipated to be a major partner with the Habitat Conservancy in acquiring and managing habitat lands.

Authorize City Manager to execute Joint Exercise of Powers Agreement Creating the Habitat Conservancy

The East Contra Costa County Habitat Conservancy would have primary authority and responsibility for implementing the HCP/NCCP and would be charged with carrying out all the duties assigned to the Implementing Entity in the HCP/NCCP and the Implementing Agreement (see Exhibit D of Attachment 2 for Joint Exercise of Powers Agreement). In the Joint Exercise of Powers Agreement (JPA) the County will provide initial staff support to the Habitat Conservancy. The source of staff support in the future for the Habitat Conservancy could be changed by action of either Contra Costa County or the Habitat Conservancy. The Habitat Conservancy would have the authority to conduct land acquisition, land management and other conservation actions directly. However, staff expects that the Habitat Conservancy will explore contracting out certain activities to other organizations such as EBRPD, Contra Costa Water District, and land trusts as much as possible to take advantage of the land management expertise and experience held by these organizations, to avoid creating redundant government services, and to achieve cost efficiencies and an economy of scale.

Subsequent to consideration of the JPA by the City Council of Clayton and the County Board of Supervisors in December, concerns were raised by the Oakley City Council on January 8, 2007 regarding, among other things, two sections of the JPA. The first concern related to the ability of a member agency to withdraw from the JPA and the second concern related to the method by which a member agency would be obligated to contribute funds to help pay for legal costs in the event of a lawsuit brought against the Habitat Conservancy. In response, staff and legal counsel to the parties of the JPA discussed these concerns and agreed to recommend to their respective legislative bodies the language in Sections 3 and 14 of the JPA (included within Exhibit D of Attachment 2 of this report). Specifically, language has been added to Section 3 that mentions how a member agency may withdraw from the JPA and language was changed in Section 14 that eliminates a mandatory obligation for member agencies to contribute funds in the event litigation is filed against the Habitat Conservancy.

Appoint a City Council Representative to the East Contra Costa County Habitat Conservancy Governing Board

A City Council representative and alternate needs to be appointed to represent the City of Brentwood on the Habitat Conservancy Governing Board. The Governing Board will need to meet to officially request State and federal permits through the HCP/NCCP. The Governing Board will administer the Joint Exercise of Powers Agreement. The Board duties include review and approval of the Conservancy budget, adoption of by-laws, and oversight and appointment of Conservancy officers and employees.

FISCAL IMPACT
No commitment of funding is required from the City’s General Fund. Pursuant to the HCP/NCCP, impact fees would be established to pay the costs related to mitigation (approximately $200 million in developer fees is projected over the 30-year life of the HCP/NCCP). The mechanism to establish and collect impact fees to help pay mitigation costs will require future separate Council action. Non-mitigation conservation expenditures would be funded by a maintenance of effort by public agencies that have funded conservation in the plan area in the past (e.g. EBRPD, Coastal Conservancy, Wildlife Conservation Board) and by grants from funding sources that are reserved for HCPs and NCCPs (e.g., the U.S. Department of the Interior announced a $6.5 million grant in September for the HCP/NCCP land acquisition in east Contra Costa County, the U.S. Bureau of Reclamation has awarded $991,000 and Proposition 84 included $90 million in earmarked funding for approved NCCPs statewide). The HCP/NCCP does not require establishment of a new public mechanism. Additional information on cost and funding is provided on page 10 of the attached summary booklet (see Attachment 1) and in Chapter 9 and Appendices G and H of the HCP/NCCP (see Exhibit B of Attachment 2).

City staff time for processing of development permits would be charged to development applicants by amending the current fee schedule as part of review of an implementing ordinance and consideration of a fee resolution by Council at a future date. The City would incur incidental costs for attendance time at Habitat Conservancy meetings.

Attachments:

1. Introductory booklet on the HCP/NCCP entitled, “Conserving Natural Lands and Sustaining Economic Development: An Introduction to the Final East Contra Costa County Habitat Conservation Plan / Natural Community Conservation Plan”

2. Resolution approving the HCP/NCCP including:
a. CEQA Findings (Exhibit A);
b. CD-ROM containing the Final HCP/NCCP October 2006 and Final EIS/EIR, and “Corrections and Updates to the HCP/NCCP, December 19, 2006”(Exhibit B);
c. “Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan” (Exhibit C); and
d. “Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy” (Exhibit D).

3. Correspondence received from California Native Plant Society, Contra Costa Council, Friends of Marsh Creek Watershed, Greenbelt Alliance, Home Builders Association of Northern California, D.R. Horton, Institute for Ecological Health, KB Home, Legacy Land Strategies, Muir Heritage Land Trust, Save Mount Diablo, Shea Home, Sierra Club dated December 20, 2006.




RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ADOPTING FINDINGS AS A RESPONSIBLE AGENCY RELATED TO THE FINAL ENVIRONMENTAL IMPACT REPORT FOR THE FINAL EAST CONTRA COSTA COUNTY HABITAT CONSERVATION PLAN / NATURAL COMMUNITY CONSERVATION PLAN (HCP/NCCP), APPROVING THE FINAL EAST CONTRA COSTA COUNTY HCP/NCCP, APPROVING AND AUTHORIZING EXECUTION OF THE IMPLEMENTING AGREEMENT AND A JOINT EXERCISE OF POWERS AGREEMENT CREATING THE EAST CONTRA COSTA COUNTY HABITAT CONSERVANCY.

WHEREAS, Goal 7 of the Conservation/Open Space Element of the City’s General Plan calls for the protection of natural resources within the City’s Planning Area; and

WHEREAS, Policy 7.2 of the Conservation/Open Space Element of the City’s General Plan calls for the preservation of vegetation and associated wildlife habitat in the City’s Planning Area; and

WHEREAS, on November 10, 1998 the City Council directed staff to work with other East Contra Costa County jurisdictions and State and federal agencies to explore creation of a Habitat Conservation Plan / Natural Community Conservation Plan (HCP/NCCP); and

WHEREAS, in June 2000, the East Contra Costa County Habitat Conservation Plan Association (HCPA) was formed to provide regional conservation and development guidelines to protect natural resources while improving and streamlining the permit process for endangered species and wetland regulations; and

WHEREAS, the HCPA includes the cities of Brentwood, Clayton, Oakley, and Pittsburg; Contra Costa Water District, East Bay Regional Park District, and Contra Costa County; and

WHEREAS, in October 2001, the HCPA began preparing a Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP) for East Contra Costa County; and

WHEREAS, in June 2005, a Draft HCP/NCCP was released for public review and comment; and,

WHEREAS, in October 2006, a Final HCP/NCCP and Final EIR/EIS was released and copies of which are on file within the Brentwood Community Development Department at 104 Oak Street; and

WHEREAS, the main element of the proposed HCP/NCCP conservation strategy is the creation of a Preserve System that would preserve approximately 23,800 acres of species habitat land with the initial urban development area, or approximately 30,300 acres of species habitat land under the maximum urban development area. Likely locations for land acquisition have been divided into Acquisition Analysis Zones, and are under study as detailed in Chapter 2 of the EIR; and

WHEREAS, the proposed HCP/NCCP conservation measures address the landscape-level, community-level (or habitat), and species-level impacts, and includes measures to address the following objectives: design of covered activities to avoid or minimize impacts on covered species and covered vegetation communities; preservation of covered vegetation communities; preservation of covered species populations and habitats; restoration of covered species habitat and vegetation communities to compensate for direct and indirect impacts on specific species and vegetation communities; restoration of species habitat to contribute to the recovery of listed covered species and help prevent the listing of non-listed covered species, and management of preserves to maximize the functions of habitats for covered species; and

WHEREAS, in addition to its primary role of protecting species and their habitats, the Preserve System would also support activities such as recreation, livestock grazing and, to a lesser degree, cultivated agriculture; and

WHEREAS, by developing a plan that addresses natural resource issues comprehensively and proactively, the City would increase its control over local land use issues and benefit species and project proponents alike; and

WHEREAS, on November 8, 2006, the HCP Executive Governing Committee unanimously approved the final HCP/NCCP and the EIR/EIS as the lead agency and directed the HCPA staff to forward the documents to the plan participants for approval; and

WHEREAS, on January 23, 2007, the City Council held a public hearing at which it reviewed the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation, the implementing agreement and a Joint Exercise of Powers Agreement creating a conservancy to form the oversight agency for the Plan; and

WHEREAS, the City Council has reviewed and given consideration to all written material and oral testimony presented before and at the hearing.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby finds and determines as follows:

1. The foregoing recitals are true and correct and made a part of this resolution.

2. The City Council adopts the findings as a Responsible Agency pursuant to the requirements of the California Environmental Quality Act (CEQA) and related to the Final Environmental Impact Report (EIR) for the HCP/NCCP, as set forth in Exhibit A and incorporated herein by reference.

3. The City Council approves the Final East Contra Costa County HCP/NCCP dated October 2006 as revised in the document entitled “Corrections and Updates to the HCP/NCCP, December 19, 2006” as set forth in Exhibit B and incorporated herein by reference.

4. The City Council approves and authorizes the City Manager to execute the “Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan” as set forth in Exhibit C.

5. The City Council approves and authorizes the City Manager to execute the “Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy” as set forth in Exhibit D to form the entity that will oversee implementation of the HCP/NCCP.

6. The City Council directs the Community Development Director to file a Notice of Determination with the Contra Costa County Clerk.

PASSED by the City Council of the City of Brentwood at a regular meeting on the 23rd day of January, 2007, by the following vote:


CEQA FINDINGS
APPROVAL OF THE EAST CONTRA COSTA COUNTY HABITAT CONSERVATION PLAN / NATURAL COMMUNITY CONSERVATION PLAN, AUTHORIZATION OF THE EXECUTION OF THE IMPLEMENTING AGREEMENT, AUTHORIZATION OF THE EXECUTION OF A JOINT EXERCISE OF POWERS AGREEMENT
BY THE CITY OF BRENTWOOD

I. INTRODUCTION
1. These are the CEQA findings prepared by the City of Brentwood (“City”) as a responsible agency for approval of the East Contra Costa County Habitat Conservation Plan /Natural Community Conservation Plan (“Proposed Project” or "HCP/NCCP"). The City is approving the HCP/NCCP and is taking the following two actions to implement the HCP/NCCP: a) authorization of the execution of the Implementing Agreement for the East Contra Costa County Habitat Conservation Plan / Natural Community Conservation Plan and b) authorization of the execution of the Joint Exercise of Powers Agreement Creating the East Contra Costa County Habitat Conservancy. The East Contra Costa County Habitat Conservancy will implement the HCP/NCCP and is referred to in the HCP/NCCP and these findings as the Implementing Entity. These findings pertain to the Proposed Project and the Environmental Impact Report (“EIR”) prepared for the Proposed Project (SCH #2005092129). The Draft EIR, the Final EIR, and all the appendices comprise the “EIR” referenced in these findings.
2. The East Contra Costa County Habitat Conservation Plan Association (HCPA) is a joint exercise of powers authority formed by: the Cities of Brentwood, Clayton, Oakley, and Pittsburg; Contra Costa County; the Contra Costa Water District (CCWD); and the East Bay Regional Park District. The HCPA was formed to manage and fund development of the proposed HCP/NCCP for submission to the agencies that formed the HCPA and to United States Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (DFG). The HCPA was the lead agency for the EIR, which was certified on November 8, 2006.
3. These CEQA findings are part of the Resolution documenting the adoption of these CEQA findings by the City.
II. THE PROPOSED PROJECT
4. The proposed HCP/NCCP offers the best combination of benefits, including factors related to both the Proposed Project’s purpose and need and its impacts, and contains the elements described below.
Two permit areas which reflect the range of expected growth in the area would be established: an initial urban development area (which would authorize 9,796 acres of ground-disturbing urban development activities); and a maximum urban development area (which would authorize up to 13,029 acres of ground-disturbing urban development activities).
Covered activities (i.e., specific activities or projects) in the proposed HCP/NCCP which would be permitted by DFG and USFWS include the following three distinct categories: (1) Activities and projects associated with urban growth, in accord with local general plans; (2) Specific infrastructure projects outside the urban development area; and (3) certain activities inside the proposed HCP/NCCP preserves including construction and maintenance of recreational or management facilities, habitat enhancement, restoration, and creation, management activities necessary to achieve the HCP/NCCP’s biological goals, surveys for covered species, vegetation communities, and other resources, agricultural activities on adjoining land within one mile of the preserve boundary, low-intensity recreational use, and construction and maintenance of utility infrastructure.
Other activities or projects not specifically described above may be evaluated for coverage under the proposed HCP/NCCP on a case-by-case basis.
The main element of the proposed HCP/NCCP conservation strategy is the creation of a Preserve System that would preserve approximately 23,800 acres of land with the initial urban development area, or approximately 30,300 acres of land under the maximum urban development area. Likely locations for land acquisition have been divided into Acquisition Analysis Zones, and are under study as detailed in Chapter 2 of the EIR.
The proposed HCP/NCCP conservation measures address the landscape-level, community-level (or habitat), and species-level impacts, and includes measures to address the following objectives: design of covered activities to avoid or minimize impacts on covered species and covered vegetation communities; preservation of covered vegetation communities; preservation of covered species populations and habitats; restoration of covered species habitat and vegetation communities to compensate for direct and indirect impacts on specific species and vegetation communities; restoration of species habitat to contribute to the recovery of listed covered species and help prevent the listing of non-listed covered species, and management of preserves to maximize the functions of habitats for covered species.
III. ENVIRONMENTAL REVIEW OF THE PROPOSED PROJECT
5. Pursuant to the California Environmental Quality Act, Public Resources Code section 21000 et seq. (“CEQA”) and the CEQA Guidelines, Code of California Regulations, Title XIV, Section 15000 et seq., the HCPA determined that an Environmental Impact Report consisting of a Draft EIR, a Final EIR and all the appendices ("EIR") would be prepared for the Proposed Project. The City concurs in that determination.

6. The HCPA issued a Notice of Preparation (NOP), which was circulated to responsible agencies and interested groups and individuals for review and comment on June 30, 2003.

7. Upon completion of the Draft EIR, the HCPA filed a notice of availability (NOA) in compliance with CEQA with the State Clearinghouse. The HCPA distributed the NOA and the EIR to interested agencies, organizations, and individuals for review and comment and made the EIR available at public libraries for public review. The public review period was September 2, 2005, to December 1, 2005; however, both the Draft HCP/NCCP and the Draft EIR were made available in June 2005. The City reviewed the Draft EIR in detail.
8. The HCPA received written comments on the Draft EIR during the public review period. The HCPA prepared responses to comments on environmental issues, and made changes to the Draft EIR. The responses to comments, changes to the Draft EIR and additional information were published in the Final EIR on October 10, 2006. The City reviewed the Final EIR in detail.
9. The Executive Governing Committee of the HCPA held a public meeting on the EIR on November 8, 2006. At this meeting, the HCPA certified the EIR, adopted findings and a Mitigation Monitoring and Reporting Plan (MMRP), and approved the HCP/NCCP for submission to the City Councils of the Cities of Brentwood, Clayton, Oakley, and Pittsburg, the Contra Costa County Board of Supervisors, and the East Bay Regional Park District Board of Directors. The HCPA filed a Notice of Determination related to these actions on November 9, 2006.
10. At all public meetings during the preparation of the HCP/NCCP, the HCPA staff and its consultants provided information about the Proposed Project, the potential environmental impacts, and the CEQA review process. At each meeting, members of the public had the opportunity to ask questions and express their concerns and interests for the Proposed Project. The City has participated in the preparation of the HCP/NCCP and the preparation of the EIR.
11. CEQA Guidelines Section 15088.5 requires a lead agency to recirculate an EIR for further review and comment when significant new information is added to the EIR after public notice is given of the availability of the draft EIR but before certification. New information added to an EIR is not "significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect that the project proponent declines to implement. The Guidelines provide examples of significant new information under this standard. Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR. The HCPA found that the Final EIR does not contain significant new information as defined in the Guidelines and that recirculation of the EIR therefore is not required. The City concurs with this finding.
IV. THE RECORD
12. The record upon which all findings and determinations related to the Proposed Project are based includes the following:
a. The EIR and all documents referenced in or relied upon by the EIR.
b. All information (including written evidence and testimony) provided by HCPA staff to the HCPA relating to the EIR, the proposed approvals, the Proposed Project or its alternatives.
c. All information (including written evidence and testimony) presented to the HCPA by the environmental consultant and subconsultants who prepared the EIR, or incorporated into reports presented to the HCPA.
d. All information (including written evidence and testimony) presented to the HCPA from other public agencies relating to the Proposed Project or the EIR.
e. All information (including written evidence and testimony) presented at any public hearing or workshop related to the Proposed Project and the EIR.
f. For documentary and information purposes, all locally-adopted land use plans and ordinances, including, without limitation, general plans, specific plans and ordinances, together with environmental review documents, findings, mitigation monitoring programs and other documentation relevant to planned growth in the area.
g. The MMRP adopted by the HCPA for the Proposed Project.
h. All other documents comprising the record pursuant to Public Resources Code Section 21167.6(e).
13. The custodian of the documents and other materials that constitute the record of proceedings upon which the HCPA's certification of the EIR is based is John Kopchik, Principal Planner, Contra Costa County Community Development Department. The general location of these materials is the Contra Costa County Community Development Department at 651 Pine Street, North Wing, Fourth Floor, Martinez, California 94553.

14. These findings are based upon substantial evidence in the entire record before the HCPA and the judgment of the City. The references to certain pages or sections of the EIR set forth in these findings are for ease of reference only and are not intended to provide an exhaustive list of the evidence relied upon for these findings.

V. CERTIFICATION OF THE EIR
15. In accordance with CEQA and the CEQA Guidelines, the HCPA, as lead agency, certified that the EIR has been completed in compliance with CEQA and the CEQA Guidelines. The HCPA further certified that it has reviewed and considered the information in the EIR prior to approving the Proposed Project. Similarly, the HCPA found that it has reviewed the record and the EIR prior to approving any element of the Proposed Project. By making these findings, the HCPA confirmed, ratified and adopted the findings and conclusions of the EIR, as supplemented and modified by the findings adopted by the HCPA.
16. The HCPA certified that the EIR is adequate to support the approval of the Proposed Project and for each approval required for construction or operation of the Proposed Project.
VI. MITIGATION MEASURES, CONDITIONS OF APPROVAL, AND MMRP
17. Public Resources Code Section 21081.6 and CEQA Guidelines Section 15097 require the lead and responsible agencies to adopt a monitoring plan or reporting program to ensure that the mitigation measures adopted or made conditions of project approval are complied with during project implementation. The HCPA found that the MMRP met these requirements and adopted the MMRP.
18. The mitigation measures recommended by the EIR and incorporated into the Proposed Project are specific and enforceable. As appropriate, some mitigation measures define performance standards to ensure no significant environmental impacts occur. The MMRP adequately describes conditions, implementation, verification, and reporting requirements to ensure the Proposed Project complies with the adopted mitigation measures. The MMRP ensures that the mitigation measures are in place, as appropriate, throughout the life of the Proposed Project.
19. As set forth in Table A-1, all of the mitigation measures are the responsibility of and within the authority of the Implementing Entity. As such, none of the mitigation measures are conditions of approval by the City, and no MMRP is adopted by the City since the mitigation measures are within the authority of another agency.
VII. FINDINGS REGARDING IMPACTS
20. In accordance with Public Resources Code section 21081 and CEQA Guidelines sections 15091 and 15092, the City adopts the findings and conclusions regarding impacts and mitigation measures that are set forth in the EIR, and summarized in Table A-1. These findings do not repeat the full discussions of environmental impacts contained in the EIR. The City ratifies, adopts and incorporates the analysis, explanation, findings, responses to comments and conclusions of the EIR. The City adopts the reasoning of the EIR.
21. The City has, by its review of the evidence and analysis presented in the EIR and in the record, acquired a better understanding of the full scope of the environmental issues presented by the Proposed Project. In turn, this understanding has enabled the City to make fully informed, thoroughly considered decisions on these important issues. These findings are based on a full appraisal of the EIR and the record, as well as other relevant information in the record of proceedings for the Proposed Project.
22. The City finds that, with HCP/NCCP implementation, including all conservation measures in Chapter 5 of the HCP/NCCP, and all the conditions on covered activities in Chapter 6 of the HCP/NCCP, and with implementation of the identified mitigation in the adopted by the HCPA in the MMRP, all of the Proposed Project impacts will be at a level of less than significant as shown in table ES-1 of the final EIR. For each of the impacts identified in Table A-1 that requires implementation of one or more mitigation measures to reduce the impact to a less than significant level, implementation of the mitigation measure or measures is the responsibility of the Implementing Entity.
VIII. FINDINGS REGARDING ALTERNATIVES
23. The City adopts the EIR’s analysis and conclusions regarding alternatives considered and the alternatives eliminated from further consideration, both during the scoping process and in response to comments.
24. The EIR evaluated a reasonable range of alternatives to the Proposed Project. Fully evaluated alternatives included: Alternative 2 (Conservation Strategy B); Alternative 3 (Reduced Development Area); and Alternative 4 (No Action/No Project). The analysis examined the feasibility of each alternative, the environmental impacts of each alternative, and the ability of each alternative to meet the objectives of the Proposed Project. As the EIR was combined with a NEPA Environmental Impact Statement (EIS), the evaluation of alternatives was at an equal level of detail. Seven additional alternatives were considered, but eliminated from further consideration for the reasons disclosed in Chapter 2 of the EIR and discussed below.
25. The City has independently reviewed and considered the information on alternatives provided in the EIR and in the record. The EIR reflects the City’s independent judgment as to alternatives. The City finds that the Proposed Project (Conservation Strategy A) provides the best balance between satisfaction of the Proposed Project’s objectives and mitigation of environmental impacts to the extent feasible, as described and analyzed in the EIR. All the remaining alternatives were not selected for the following reasons.
A. Alternative 2 (Conservation Strategy B) provides a different and lower amount of land acquisition and habitat restoration than the Proposed Project. As further described in Chapter 2 of the EIR, Alternative 2 proposed conservation in different areas and less conservation overall than the Proposed Project. Conservation measures related to land management, principles of habitat restoration, and impact avoidance and minimization are the same between the two alternatives. Alternative 2 was not selected because the conservation strategy incorporated in the Proposed Project better fulfill the land use and biological goals of the HCP/NCCP as a whole.
B. Alternative 3 (Reduced Development Area) would designate a single, smaller permit area, rather than the initial and maximum urban development areas designated in the Proposed Project. Under this alternative, covered activities and projects within the urban development area would be limited to lands inside city limits that are designated for development and lands in unincorporated areas with a development land use designation in the Contra Costa County General Plan. Rural infrastructure projects and activities within the preserves, as described for the proposed HCP/NCCP, would also be covered under this alternative. Under this alternative, the permit area would be 6,991 acres, approximately 1,958 acres less than the initial urban development area and 6,225 acres less than the maximum urban development area. Land acquisition priorities identified for the initial urban development area would remain the same as the Proposed Project. Requirements for land acquisition and restoration would be reduced under because these requirements are scaled according to the level of development. All other elements would be identical to the Proposed Project. Alternative 3 was not selected because it would not provide flexibility in adapting the HCP/NCCP to future changes in land use planning over the life of the permit term. Fixing the permit area into currently designated areas for development would require costly and inefficient revision and amendment to the HCP/NCCP to adapt to future development patterns. The Proposed Project allows for flexibility within the maximum urban development area while fulfilling the biological goals of conservation and recovery for covered species in the area.
C. Alternative 4 (No-Action/No-Project) would not include the proposed HCP/NCCP, including implementation of conservation measures and creation of a Preserve System, would not be adopted, and permits pursuant to Section 10(a)(1)(B) of ESA and Section 2835 of the NCCPA would not be issued by USFWS and DFG, respectively. Compliance with ESA and CESA would continue to be addressed on a case-by-case basis. Projects and activities with a potential to affect federally listed species would be required to individually comply with ESA through either the preparation of individual HCPs and Section 10 permit application, or the Section 7 consultation process in cases in which federal authorization (e.g., Section 404 CWA permitting by USACE) or funding (e.g., Federal Highway Administration [FHWA] funding for transportation projects) are required. Section 7 compliance would focus on federally listed species and would not address state-listed or nonlisted species. In the absence of a Section 10 permit, private activities near or adjacent to the habitat of listed species would have a greater risk of take of listed species and of civil penalties and injunctive relief. Alternative 4 was not selected because it would not fulfill the purpose and need of the Proposed Project.
D. Alternative 5 (No-Take Alternative). Section 10(a)(2)(A)(iii) of the federal ESA states: "No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1)(B) unless the applicant therefore submits to the Secretary a conservation plan that specifies what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized." In accordance with this requirement, the proposed HCP/NCCP considers alternatives to take for each of the federally listed species covered under the proposed HCP/NCCP (see HCP/NCCP Chapter 10, Alternatives to Take). Alternatives to take for each federally listed species were rejected in the proposed HCP/NCCP because they would not allow reasonable development consistent with the general plans of the cities or County, they would not be practicable to implement, or they would result in an outcome that is biologically inferior to that of the proposed HCP/NCCP. Alternatives to take for federally listed species were thus eliminated from further consideration in the EIR.
E. Alternative 6 (Expanded List of Covered Species). During the scoping process, it was suggested that the EIR consider an alternative that provides coverage for additional species. The Science Advisory Panel reviewed the Proposed Project covered species list and considered it appropriate. However, it did recommend reconsidering 13 species that were originally not recommended for coverage (ECCC HCP/NCCP Science Advisory Panel 2002). Of these 13 species, the HCP/NCCP consultant recommended that the ECCC HCPA consider adding the following six covered species if additional funding could be found: Peregrine Falcon; Short-eared Owl; Western pond turtle; Western spadefoot; California horned lizard; Round-leaved filaree; and Western pond turtle and round-leaved filaree were added as a result of the Science Advisory Panel’s recommendation. An alternative that includes the remaining four species is not feasible because additional planning funds to add these species to the proposed HCP/NCCP has not been secured. Furthermore, adding these species would not substantially change the proposed HCP/NCCP conservation strategy. Conservation measures already proposed in the HCP/NCCP to protect and enhance grassland and oak woodland would incidentally conserve foraging habitat for peregrine falcon, potential foraging and breeding habitat for short-eared owl, foraging and breeding habitat for California horned lizard, foraging and aestivation habitat for western spadefoot. Pond protection, enhancement, restoration, and creation would also conserve habitat for western spadefoot. Species-specific conservation measures might be added to the proposed HCP/NCCP if these additional four species were added, but these measures would not substantially change the conservation strategy, its implementation cost, or its impacts. Adding these species would not reduce any environmental impacts associated with the proposed HCP/NCCP. This alternative was eliminated from further consideration in the EIR based on it not substantially changing the Proposed Project description or the Proposed Project impacts.
F. Alternative 7 (ESA-Listed Species Only). Under this alternative, only those species that are federally listed as threatened or endangered would be proposed for coverage under the HCP/NCCP. The following species would be covered: San Joaquin kit fox; Alameda whipsnake; Giant garter snake; California red-legged frog; California tiger salamander; Longhorn fairy shrimp; Vernal pool fairy shrimp; Vernal pool tadpole shrimp. Under a Listed Species Only alternative, no assurances would be provided by USFWS, as part of the interim take permits (ITPs), that the avoidance and mitigation measures provided in the proposed HCP/NCCP would adequately conserve currently nonlisted species that may be listed during the term of the HCP/NCCP. Other sensitive species would not be covered, and take would be addressed on a project-by-project basis, like that described above for the No-Action/No-Project alternative. This alternative would not meet the Objectives of the Proposed Project to develop and implement a plan that provides comprehensive species protection, avoids future listing of species, and provides assurances that the HCP/NCCP would adequately minimize and mitigate impacts on nonlisted species that may be listed in the future. Non-coverage of additional species would also result in a loss of potential permitting efficiency, another key Objective of the Proposed Project. This alternative was therefore eliminated from further consideration in the EIR.
G. Alternative 8 (Preserve Acquisition Outside the Inventory Area). Under this alternative, land acquisition could occur both inside and outside the inventory area. This alternative would allow the Implementing Entity a broader geographic area in which to seek willing sellers and potentially a greater ability to target land-cover types or areas of particular importance for achieving the established biological goals and objectives. This alternative was eliminated from consideration first because it would not meet the Objective of the Proposed Project to provide for species and community conservation in eastern Contra Costa County. The first recommendation to prepare an HCP/NCCP by FWS and DFG was intended to mitigate the impacts of increased growth in this specific geographic area. Preservation and mitigation are most effective if they occur as close to the area of impact as possible. Acquisition outside the inventory area may reduce the effectiveness of the overall conservation strategy; it would also reduce the amount of funding available for acquisition of lands within the inventory area that are essential for the creation of a comprehensive management plan. In addition, many of the covered plant species are not present in the San Joaquin Valley. The ability to acquire preserve lands outside the current HCP/NCCP inventory area would be constrained by several other land use and planning considerations. Land acquisition to the west and north would be virtually precluded by existing urban areas, parklands, and the Bay-Delta. Land acquisition to the east in San Joaquin County could interfere with the land acquisition efforts necessary for San Joaquin County to meet the requirements of its approved Countywide HCP. Land acquisition to the south could interfere with conservation and land acquisition efforts being undertaken independently by a number of local agencies, including the EBRPD and the Altamont Landfill Open Space Committee. Finally, local authorities in Contra Costa County may lack jurisdiction to fully implement the proposed HCP/NCCP in Alameda or San Joaquin County since the implementing ordinance would have no affect and enforcement would be based solely on agreements reached with individual landowners within those jurisdictions. Thus, this alternative was eliminated from further consideration in the EIR.
H. Alternative 9 (Reduced Permit Duration). Under this alternative, the term of the HCP/NCCP and the take permits would be limited to 20 years to enable local jurisdictions, permitting agencies, and the Implementing Entity to evaluate the success of the HCP/NCCP prior to full development of the expanded permit area. This alternative would not result in impacts that differ substantially from those of the proposed HCP/NCCP. Although a reduced permit term would more closely parallel the time frame of the local general plans, a longer permit term is necessary to fully implement a comprehensive regional planning and conservation strategy in eastern Contra Costa County. Limiting the term of the permit would also limit the ability of the Implementing Entity and the Permittees to secure funding from development sources to implement the regional conservation strategy. The covered activities (urban development/growth) and preserve assembly is expected to take up to 30 years. In the judgment of the HCPA to which the City concur, the reduced permit alternative would not cover the full duration of potential covered activities nor the conservation program implementation (including funding considerations). This alternative was eliminated from consideration in the EIR.
I. Alternative 10 (Existing Reserves Only). Under this alternative, conservation would be provided only within current park or open space lands in eastern Contra Costa County. Conservation would take the form of changes in management and habitat restoration on existing preserves to benefit covered species. This alternative would meet neither the HCP standards requiring it to mitigate to the maximum extent practicable, NCCPA requirements to conserve the covered species, nor the Objective of the Proposed Project to focus on preservation of lands that are not currently protected. Existing preserves are owned by EBRPD, CCWD, California Department of Parks and Recreation, and Save Mount Diablo (the last two entities are not participating in the HCP). As a condition of the Planning Agreement for the proposed HCP/NCCP between the HCPA and DFG, it was established that existing preserves would not be relied upon in the proposed HCP/NCCP to compensate for impacts of covered activities. In addition, this alternative would also not meet the Objectives of the Proposed Project of satisfying the requirements for issuance of ITPs under the NCCPA. Existing reserves would provide conservation of only a limited extent of vegetation communities and species. Moreover, existing reserves are widely distributed throughout eastern Contra Costa County and do not provide adequate corridors for movement of species between areas of suitable habitat. Broader conservation and recovery, as well as avoidance of future listings, could not be provided within the limitations of existing park and open space lands. This alternative does not minimize and mitigate to the maximum extent practicable. This alternative was eliminated from consideration in the EIR
J. Alternative 11 (Modified Urban Growth Model). An alternative that assumes a “smart-growth” or other urban growth model for eastern Contra Costa County was suggested during the public scoping period for the EIR. Smart-growth or similar alternative growth models strive for new development that is more town centered; is auto-accessible while also accommodating transit and pedestrian activity; and has a greater mix of housing, commercial, and retail uses. It also seeks to preserve open space and protect sensitive areas such as wetlands. This alternative focuses on changing land use policy as oppose to looking at alternative HCP/NCCP approaches, i.e., conservation strategies, covered species, permit duration, etc. This alternative requires changing development patterns for the purpose of creating town centers, accommodating transit and pedestrian activities, requiring greater mixed uses, preserving open space, and protecting sensitive resources. To a great extent, benefit to species would be secondary and incidental to broad reaching changes to land use policy.
The Proposed Project is the HCP/NCCP not the applicable General Plans. The HCP/NCCP is required to assess and mitigate for impacts of the “covered activities” on “covered species”. In order to adequately mitigate for impacts the HCP/NCCP may limit the amount or location of development that the applicable general plans contemplate; however, the HCP/NCCP is not intended to supercede the general plans or land use authority of the applicable jurisdictions but rather to impose restrictions on the general plan implementation through consideration of regional conservation requirements necessary to protect the covered species.
The current general plans for the County and the cities are the current guide to future development in eastern Contra Costa County and are the basis or baseline for the assessment of impacts and conservation in the proposed HCP/NCCP. Alternative growth models would not be precluded under the proposed HCP/NCCP and could be implemented through the local legislative process by the applicable jurisdictions in the future. However, development of a smart-growth alternative for analysis in the EIR would require either that the local land use agencies develop and adopt new general plans policies that incorporate smart-growth as a basis for conservation planning, or that the proposed HPC/NCCP make broad assumptions about how a smart-growth alternative would be implemented by each of the local jurisdictions. The time and cost associated with development of new general plans for each applicable jurisdiction would be prohibitive and would effectively offset any efficiencies local jurisdictions would hope to achieve in preparing the proposed HCP/NCCP. Development of and reliance on a growth model that is different from the current general plans would be highly speculative due to the legislative/political nature of such an action. Accordingly, this alternative is not feasible due to legal and financial reasons. Additionally, requiring significant changes to existing general plans, does not meet the participating jurisdictions’ specific CEQA goal and objective of reasonably and efficiently implementing their respective general and specific plans.



 

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